for the recovery of the two mares and the two cows. The sheriff, however, was unable to obtain the possession of the property by virtue of the writ of replevin, and was therefore unable to deliver the possession of the property to Humes. On the trial, which was before the court without a jury, the findings and judgment were in favor of Humes and against both the defendants Mullaney and Swan for a return of the property or its value, to wit, $240, and for costs of suit; and Mullaney and Swan, as plaintiffs in error, bring the case to this court for review. As the court below found generally in favor of Humes and against the defendants below, we must assume, in all cases where there is any conflict in the evidence, that the evidence tending to support the claim of Humes is true, and that all the evidence upon the other side or against Humes' claim is not true; and, viewing the evidence in this light, then certainly nothing happened that would estop Humes from claiming that the property in controversy was exempt; and it was exempt. Taking this view of the evidence, no levy was made upon any of Humes' property until the constable, Swan, finally took the two mares, two cows, and two calves into his possession for the purpose of selling the same. And this was probably in fact the only levy that was ever made. We must so consider it, under the evidence and findings. There are many objections that might be urged against the validity of the constable's alleged or supposed levy upon the 8 to 12 horses and upon the 25 to 33 neat cattle, but it is not necessary to state them. Taking the evidence of Humes as true, the property was certainly exempt from the execution under the statutes of this state and the decisions of this court. Rice v. Nolan, 33 Kan. 28, 5 Pac. Rep. 437; Gardner v. King, 37 Kan. 671, 15 Pac. Rep. 920. Mullaney was the plaintiff in the execution levied upon the property of Humes, and it was at his instance that the execution was issued and levied; and Swan, the constable, was simply his agent in the seizure and sale of the property; hence Mullaney, as well as Swan, is liable for all the property wrongfully seized and sold. | It is further claimed that the judgment is for the recovery of two gray mares, when in fact there was only one gray mare and the other was a sorrel mare. It is true, the record by mistake uses the word "gray" in one place, where it should have used the word "sorrel," but yet, from the whole of the record, it can easily be known what was intended, and the record can easily be corrected by changing the word "gray into the word "sorrel. And, further, the record shows that at the conclusion of the trial the following proceedings were had, to-wit: "There being no further evidence, the court took the case under advisement; and on the 4th day of December, 1888, the court rendered judgment for plaintiff against both said defendants, for the return of the sorrel mare, or for $125; for the return of the gray mare, or for $85; for the return of the two calves, or for $15 each; and for The owner of a strip of land, whose acts have been such as to estop him from denying that it is a public road, and have induced the public to use it as such, and have caused the officers of the township and the overseer of the road district in which it is situate to work and improve it, is entitled to hold as a homestead a tract of land on both sides of such strip of land, consisting of less than 30 acres. 28 Pac. Rep. 696, affirmed. On rehearing. PER CURIAM. It is conceded that the injunction asked for by the plaintiff below should be denied unless the premises levied upon were a part of his homestead at the time of the levy. In 1860 a strip 90 feet in width separated the two tracts of land which are claimed by plaintiff below as his homestead. This strip at that time was a street in Quindaro. If these 90 feet, or if 60 feet thereof, were a public street in Quindaro at the time of the levy, then the homestead did not extend on both sides of the same. "Whenever several lots or pieces or parcels of land claimed to be held and occupied as a homestead are not contiguous, but are separated by lands in which the person claiming the homestead has no title or interest, as by lands owned by another, or by a street, alley, or other public ground in a town or city, such several lots or pieces or parcels of land cannot be included in or constitute one and the same homestead." Randal v. Elder, 12 Kan. 257. If, however, the 90foot strip had been vacated, or if all of it not vacated was a public highway merely, the homestead could extend on both sides. "An easement may be created upon or through the land, such as a common road, a railroad, or a water privilege, without in any manner affecting its character as a homestead." Randal v. Elder, supra. On the 30th of August, 1873, a petition containing a description of the land in controversy, signed by plaintiff below and nine others, was filed in the office of the county clerk of Wyandotte county, and presented to the board of commissioners of that county, asking that the lots, blocks, streets, and alleys within the boundaries therein described, in the town of Quindaro, not occupied for the purposes of a town or village, be vacated, with the exception of 60 feet on the west side of Kansas avenue, from Walnut avenue to Seventh street.—a part of the strip above referred to, which they asked to be de clared a public highway. On the 3d of September, 1873, this petition was considered by the board of county commissioners, and then the matters were continued for final hearing until the 9th of October, 1873. On that day it was shown to the board that all the parties in interest had had due notice, and consented thereto. Thereon the board allowed the prayer of the petitioners, and vacated the several portions of the town site of Quindaro, and the additions thereto, as fully described in the order. By that order it was understood that the 30-foot strip was absolutely vacated, and the 60-foot strip vacated as a public street, and changed to a public highway. Since 1873 a part of what was designated as "Kansas Avenue," on the plat of the town site of Quindaro, has been used as a public highway, and has been worked and kept in repair by and under the supervision of the road overseer of one of the road districts of the township of Quindaro, within the limits of which the land is situated, and by the township officers of the township, the same in all respects as other roads and highways in the road district. The levy was not made until the 31st day of January, 1888. The judgment upon which the levy was made was rendered on the 1st day of August, 1887. The 30-foot strip was considered by all of the township and county officials as vacated from the 9th of October, 1873, and the 60-foot strip was considered by the township and county officials as vacated as a public street from the 9th of October, 1873. Thereafter the 60-foot strip was used and occupied as a highway only for about 14 years before the levy. It seems to be admitted in the brief filed for a rehearing that the board vacated 30 feet of the strip, or at least attempted so to do. The only defect alleged in the vacation as to the 30 feet is the want of official or proper notice; but this defect cannot apply to parties who were present and consented, nor can it apply to any creditors of these parties, if they seek to step in and stand in their shoes. If the board had authority, upon proper notice or publication being given, to vacate 30 feet of the strip, it had the authority, if the parties interested were present and consented, to vacate the 30 feet without notice, at least so far as the parties present are concerned, and those who claim through or under them. If the board had the authority to vacate 30 feet, then it had the authority to vacate all the street,the whole 90 feet. If it could vacate the 90 feet, it could absolutely vacate 30 feet of the street, and then vacate the other 60 feet as a street, or grant the prayer of the petition which it did in this case, if the parties interested were present and consented. If present and consenting, no notice was necessary. At least, the parties present and consenting, and those claiming through or under them, by deed, judgment, execution, or otherwise, cannot complain of any want of notice. The vacation of a public street of a city or town, and the changing of such a street into a highway, might under some cases be beneficial to the contiguous landowner. In other cases the street might be more valu able to him than the public highway, on account of the mode of grading or repairing adopted by cities. In the brief for the rehearing, it is said that "it is wrongfully assumed that the board declared the sixtyfoot strip to be a public highway." The record, we think, sustains this construction. The original petition asked for certain lots, blocks, streets, and alleys to be vacated, and also asked for 60 feet of the street referred to, to be declared a highway. The proceedings before the board, of the date of the 9th of October, 1873, show that the prayer of the petition was granted, and the subsequent use of the 60 feet of the strip as a public highway further shows that it was intended that the street should be vacated as a street, and changed and used as a highway only. All that we intended to decide in the former opinion was that the parties to the proceedings of vacation of the 30-foot strip, and the changing of the 60-foot strip from a street to a public highway, are in no condition, in view of their agreements and actions before the board of county commissioners, and the subsequent acts of the township and county officials, to question such vacation or change. If the parties interested in a matter pending before a board of county commissioners, and concerning which the board has authority to act, consent to a vacation or other order, such vacation or order is binding upon the parties present and consenting, even if the proceedings are so irregular as not to control or estop others, not properly summoned or noticed. In this case, no one owning any lands described in the proceedings of the board of county commissioners of the 9th of October, 1873, is complaining. But a creditor of plaintiff below contends that those proceedings are so irregular or imperfect as not to vacate or change the 60-foot strip of the former street into a bighway, merely. We do not think that a creditor of a party consenting to the proceedings referred to can insist upon any want of notice, or irregularity therein. Since the 9th of October, 1873, except. ing the part of the former street which was wholly vacated, the balance of the street has been deemed a public highway only. Therefore we perceive no good reason to change or modify the judgment heretofore rendered by this court. There are some things stated in the opinion which we do not approve. But it is not necessary to affirm all of the language of the commission to support the judgment rendered by the court below. The motion for a rehearing will be overruled. (48 Kan. 66) ZEININGER V. SCHNITZLER. (Supreme Court of Kansas. April 9, 1892.) PLEADING VARIANCE-PARTY WALL. 1. No variance between the allegations in a pleading and the proof is material, unless it has actually misled the adverse party to his prejudice. 2. Where the owner of a stone foundation and brick wall, which he alleges is built on the division line on certain lots in the city, brings an action to recover one half of the cost thereof against the owner of the adjoining lot, who has permanently appropriated, in the construction of his own building, one half of such foundation and wall, it is competent upon the trial to show that the defendant was present when the divis ion line was designated by the city surveyor, and made no objection to the construction of the foundation and wall while work was going on, and also that he agreed to pay one half of the expenses of such foundation and wall when he should use the same. 28 Pac. Rep. 1007, affirmed. On rehearing. PER CURIAM. In 1885 Fritz Schnitzler was the owner of lot 18, on Market street, in the city of Wichita, in this state. Charles Zeininger was the owner of the adjoining lot, No. 16, on Market street. In the spring of 1865, Schnitzler built a stone foundation and brick wall, intending it to be upon the division line between lots 16 and 18. About two years afterwards, Charles Zeininger erected a brick building on his lot 16, and in the construction of his building appropriated one half of the foundation and brick wall built by Schnitzler. The petition which was filed by the plaintiff below alleged that he "was the owner of a certain stone foundation and brick wall on the division line between lots Nos. 16 and 18, on Market street, in the city of Wichita, being the south wall of the brick building located on said lot No. 18," and that "the defendant, Charles Zeininger, erected a certain brick building on said lot No. 16, and in the construction of said building used the south half of the stone foundation and brick wall, built by the plaintiff, as the north wall of the brick building erected on lot No. 16; that the defendant then and there permanently appropriated the south half of said wall to his own exclusive use as a part of said last above mentioned building." The defendant below filed an answer containing a general denial only. The city engineer testified that in measuring the lot of Schnitzler the latter was allowed about two feet on account of a surplus in the block. This surplus was given to Schnitzler because he told the city engineer he had bought it. It also appeared that Zeininger was present when the stakes were put down at the corners of the lots, and was frequently present during the construction of the foundation and wall. Upon the motion for a rehear ing, it was strenuously insisted that Schnitzler has been guilty of fraud in inducing the city engineer to allow him a greater part of the surplus of the block than he was entitled to, and therefore that, as the foundation and brick wall were not built exactly upon the division line between lots 16 and 18, Schnitzler is not entitled to any judgment. It appears from the evidence that Zeininger acted in good faith. If the surplus had been distribute pro rata among the lots, and not added more to one lot than to another, the correct division line between lots 16 and 18 would be a little different than the one upon which the foundation and brick wall were erected; but no al. legation of fraud was contained in the answer against Schnitzler in fixing the division line. Zeininger did not use the foundation and brick wall until one or two years after it was constructed. When the case was presented to this court the only errors alleged were as follows: "(1) The court erred in admitting evidence for the purpose of proving an estoppel; (2) upon the findings of fact the defendant was entitled to a judgment in his favor; (3) the court erred in refusing the instruction requested by the defendant; (4) that the defendant below was under no liability to the plaintiff, legally or equitably." In the former opinion handed down, we ruled that the trial court committed no error in admitting evidence showing that Zeininger was present at the construction of the foundation and brick wall, and made no objection, and afterwards used this wall in the construction of his own building. There was no error in admitting the evidence complained of. The findings of fact certainly sustain the judgment, because, if the foundation and wall were not built upon the correct division line, yet if, without any fraud, they were built upon the present location, with the consent or agreement of Zeininger, it is too late for him to make objection. appears from the evidence that R. H. Brown, who was city engineer of Wichita in 1887, in July of that year, made a survey of Zeininger's lot, with reference to the north line of the same. At that time he found the foundation and brick wall to be upon Zeininger's lot, not upon Schnitzier's. Zeininger built upon the same after this time; and therefore, with full knowledge of all the facts, he used the foundation and brick wall without objection, or notice to Schnitzler of any trouble or mistake. It Defendant below only asked one instruction. This was that no verdict could be rendered for the plaintiff unless the party wall was constructed upon the exact division line between lots 16 and 18. This is not the law, if the parties, without fraud, consented that any particular line should be designated as the division or party line. Such a line may be used as the division line, if the parties consent. In view of what we have said, the third point presented is not tenable. It does not appear that Schnitzler acted secretly, or intended to deceive Zeininger or any one else. He may have been mistaken about his right to buy any surplus; but if the so-called party wall was erected upon the wrong lot, publicly, openly, and without any deception or fraud, and thereafter Zeininger used the same as a party wall, this might have been shown under the petition without being such a variance from its allegations as to be prejudicial. It is probable if, in the answer of Zeininger, fraud had been alleged against Schnitzler, and this had been established, Zeininger might have succeeded, but there is not anything in the case showing other than good faith. If by mistake Schnitzler erected a foundation and brick wall upon the lot of Zeininger, with the latter's consent, Schnitzler would have been entitled to remove the same to his own premises when his attention was called thereto; but long after the party wall was erected, and at a time when Zeininger must or ought to have known all the facts in the case, he made use of and appropriated a part of it for himself. The motion for a rehearing will be denied. (48 Kan. 61) CRANE V. RING et al. (Supreme Court of Kansas. April 9, 1892.) SALE-PARTNERSHIP-PLEADING AND PROOF VARIANCE. Under a complaint alleging that plaintiff sold goods to defendant, proof that he sold them to a firm of which defendant was a partner is not a material variance, where defendant, in his answer, admits the partnership; since Civil Code, 133, provides that no variance between the pleading and proof is material, unless it actually misleads the adverse party to his prejudice. 28 Pac. Rep. 1010, affirmed. On rehearing. PER CURIAM. The question in this case is one of pleading only. The answer denied that the contract set out in the petition was ever made; alleged that the transaction was a different one; stated what it was; that it was a dealing between Ring & Smith and Crane & Toms, and not between Ring & Smith and Crane alone; gave the name of each member of Crane & Toms; and was verified. It seems to be conceded that if Ring & Smith had alleged in their petition that the goods sold and delivered to him, and amounting to $1,185.37, was a sale to Crane & Toms as partners, and not to Crane only, then the instruction of the court complained of would not have been erroneous. It is urged that the facts constituting the cause of action were not stated in ordinary and concise language when the sale was charged to Crane only, and not to the firm of Crane & Toms; therefore it is said that the petition gave no notice to Crane that he was being sued upon a contract made with Crane & Toms, who were partners. If the answer had been a general denial only, there would be much force in the argument of counsel for Crane, but the pleadings admitted that there was a partnership consisting of Crane and Toms. Under the findings of the jury, it is immaterial whether the contract sued on was with Crane alone, or with Crane & Toms, because all the pleadings must be construed, and, under our practice, substance is more regarded than mere forms. If the contract sued on was with Crane only, the plaintiff below was entitled to his judgment. If the contract was with Crane & Toms, the defendant below could not have been surprised, in view of his answer, and therefore we think, considering the pleadings, that the judgment was not erroneous. It would have been useless to have allowed the case of plaintiff below to abate, and permit him to file a new petition alleging a contract with Crane & Toms. We can well understand that in many cases, where the answer simply denies the allegations of a petition, that it would be improper and prejudicial to allege a contract with an individual only, and recover on a contract with partners. But, upon the pleadings, this is not such a case. The motion for a rehearing will be overruled. (48 Kan. 379) BEADLE V. KANSAS CITY, FT. S. & M. R. Co. (Supreme Court of Kansas. April 9, 1892.) PLEADING-CONSTRUCTION-Demurrer. When the language of a petition is of doubtful import, and it is challenged before trial by a demurrer, the rule is to construe the pleading against the pleader, upon the ground that, as he himself selects the language, he should make his meaning clear. Draper v. Cowles, 27 Kan. 484, cited and followed. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Bourbon county; C. O. FRENCH, Judge. Action by C. S. Beadle against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for defendant on demurrer to the petition, plaintiff brings error. Affirmed. E. F. Ware, for plaintiff in error. Wallace Pratt and C. W. Blair, for defendant in error. SIMPSON, C. Beadle commenced this action against the railroad company on the 27th day of March, 1888. His petition contained 613 causes of action. He claims as assignee of the firm of Beadle & Henning. The first cause of action, as originally filed, (and it differs from the others only in date, amount, and locality,) read as follows: "On or about the 14th day of July, 1885, at Cherokee, in the county of Crawford, Kan., the said firm of Beadle & Henning did deliver to the defendant 33,400 pounds of coal, all loaded on one car, and consigned to J. S. Watson, at Emporia, in the state of Kansas, to be by the defendant transported to the station of Girard, on its line of road. The defendant did receive and transport said coal to said station, but charged and collected of the said firm, through its consignee, as a condition precedent to said service and the delivery of said coal, a charge of 8 dollars and 25 cents, when at the same time the rate charged by the defendant for similar serv. ice to the Keith & Perry Coal Company and others was only $5 and 01 cent, which last sum was a maximum reasonable rate; thereby overcharging the said firm, unlawfully and unjustly, the sum of $3 and 24 cents. The said defendant has not repaid said overcharge or any part thereof, although due demand therefor has been made, wherefore plaintiff asks judgment for three times said sum, to wit, $9 and 72 cents, as provided by law, with interest thereon at 7 per cent. per annum from said last-mentioned date." A demurrer was interposed to all the causes of action set up in this petition, and it was sustained. The petition was then amended by striking out the demand for triple damages, and asking only for actual damages alleged to have been sustained. The first count of the amended petition read as follows "On or about the 14th day of July, 1885, at Cherokee, in the county of Crawford, Kan., the said firm of Beadle & Henning did deliver to the defendant 33,400 pounds of coal, all loaded on one car, and consigned to J. S. Watson, at Emporia, in the state of Kansas, to be by the defendant transported to the station of Girard, on its line of road. The defendant did receive and transport said coal to said sta tion, but charged and collected of the said firm, through its consignee, as a condition precedent to said service and the delivery of said coal, a charge of 8 dollars and 25 cents, when at the same time the rate charged by the defendant to the Keith & Perry Coal Company, and others, was only $5 and 01 cent, which last sum was a maximum reasonable rate; thereby overcharging the said firm, unlawfully and unjustly, the sum of $3 and 24 cents. The said defendant has not repaid said overcharge, or any part thereof, although due demand has been made, wherefore plaintiff asks judgment for said sum, with interest thereon at 7 per cent. per annum from said last-mentioned date." To this amended petition a demurrer was filed and sustained, and the case brought here to review the ruling of the trial court on the demurrer to the amended petition. The law under which relief is sought is found in paragraphs 1333, 1342, Gen. St. 1889. They read as follows: "(1333) No railroad company shall charge, demand, or receive from any person, company, or corporation, for the transportation of any property, or for any other service, a greater sum than it shall at the same time charge, demand, or receive from any other person, company, or corporation, for a like service from the same place, or upon like condition and under similar circumstances; and all concessions of rates, drawbacks, and contracts for special rates shall be open to and allowed all persons, companies, and corporations alike. Nor shall it charge more for transporting freight from any point on its line than a fair and just proportion of the price it charges for the same kind of freight transported from any other point. "(1342) Any railroad company which shall violate any of the provisions of this act shall forfeit for every such offense, to the person, company, or corporation aggrieved thereby, three times the actual damages sustained by the said party aggrieved, together with the costs of suit and a reasonable attorney's fee, to be fixed by the court; and if an appeal be taken from the judgment, or any part thereof, it shall be the duty of the appellate court to include in the judgment an additional reasonable attorney's fee for services in appellate court or courts." It is contended that the statutes of the state have, by their express terms, abrogated the common law in cases of discrimination and unreasonable charges, and that the amended petition makes a case under the statute, no matter what may have been the intention of the pleader, and, if it is a statutory action, each and every cause of action set forth in the petition shows on the face thereof that it is barred by the statute of limitations. An action to recover damages under paragraph 1333, Gen. St. 1889, is one upon a statute for a penalty, and is barred within one year, under subdivision 4 of section 18 of the Code. The court below, construing the petition to have been drafted under the statute, and setting up statutory causes of action, sustained the demurrer, on the theory that the petition showed on its face that the causes of action were barred by the statute of limita tions, and held, in effect, that no such action could be brought at common law; the statutory remedies being exclusive. While we have to sustain the ruling of the court on the demurrer, on the theory that "when the language is of doubtful import, and the pleading is challenged before trial, then the rule is to construe the pleading against the pleader, and this upon the ground that, as he himself selects the language, he should make his meaning clear," (Draper v. Cowles, 27 Kan. 484, and authorities cited,) we do not want to be understood as assenting to the doctrine that the common-law remedy against common car. riers for charges in excess of reasonable rates has been abrogated by the statute, or that all remedies for injuries of this character are now exclusively statutory. We do hold, with the trial court, that this petition is based upon the statute, and states statutory causes of action; but that is the extent to which we go. We recommend an affirmance of the judgment. PER CURIAM. It is so ordered; all the justices concurring. (48 Kan. 418) HARRIS V. HARPER. (Supreme Court of Kansas. April 9, 1892.) LEASE SIGNED BY LESSEE ONLY-STATUTE OF FRAUDS. Where the lessee signed, and the lessor accepted, a written lease, which was subsequently carried into execution by both parties, it will be considered as a binding obligation, and not within the statute of frauds. (Syllabus by Green, C.) Commissioners' decision. Error from district court, Lyon county; CHARLES B. GRAVES, Judge. Action by E. M. Harper against Johnson Harris for the forcible detainer of certain land. Verdict and judgment for plaintiff. Defendant brings error. Affirmed. Cunningham & McCarty, for plaintiff in error. J.Jay Buck, for defendant in error. GREEN, C. This was an action for the forcible detainer of a farm in Lyon county, brought by E. M. Harper against Johnson Harris. Some time in the fall of 1887 the parties agreed upon the terms of a lease of the farm in question to March 1, 1889. On the 22d day of February, 1888, Harris signed a written lease for the premises, and gave it to Mrs. Harper for her signature. She did not sign the lease, but retained it in her possession, and Harris had no knowledge or notice that the lease was not signed by her until the 12th day of December, 1888. In the latter part of August, or the fore part of September, of the same year, there were negotiations pending between the parties looking to the leasing of the farm for another year from March 1, 1889; Harris being under the impression that the lease had been signed by both parties. The leasing for another year was not consummated, and Harris sent word to Mrs. Harper some time in September, 1888, that he would not take the place for another year. the 19th day of December, Mrs. Harper gave notice to Harris to vacate the leased On |